JERRY FAIRMAN v. STATE OF MISSISSIPPI

SEPTEMBER 16, 1987

JERRY FAIRMAN v. STATE OF MISSISSIPPI

BEFORE ROY NOBLE LEE, PRATHER and ROBERTSON

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Jerry Fairman was indicted, tried and convicted in the Circuit Court of Bolivar County on a charge of murder less than capital. He was sentenced to life in the custody of the Mississippi Department of Corrections and has appealed to this Court assigning nine (9) errors in the trial below.

I. THE LOWER COURT ERRED IN DENYING APPELLANT'S MOTION FOR A DIRECTED VERDICT MADE AT THE CONCLUSION OF THE STATE'S EVIDENCE.

II. THE LOWER COURT ERRED IN REFUSING TO GRANT DEFENDANT'S PEREMPTORY INSTRUCTION SUBMITTED AT THE CONCLUSION OF ALL THE EVIDENCE.

III. THE VERDICT OF THE JURY IS CONTRARY TO THE LAW AND THE WEIGHT OF THE EVIDENCE.

IV. THE LOWER COURT ERRED IN DENYING APPELLANT'S MOTION OF JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT OF THE JURY, OR, IN THE ALTERNATIVE, FOR A NEW TRIAL.

The evidence favorable to the State reflects that on December 7, 1985, Laverne Jones died as a result of blows with a stick inflicted about his head by appellant Jerry Fairman. About 3:30 p.m. at a street corner in Cleveland, Mississippi, appellant and Jones met and engaged in an argument. Appellant and Jones each had a knife, but Michael Prewitt, who was present, broke up the altercation and all left. A police officer was called, and he reported to the area, stating that he would straighten out the "mess."

Later, after dark, appellant and Prewitt drove to a store in appellant's truck. Upon returning to the truck, appellant drove around to the back of the store without turning on the lights. When he did turn on the lights, Jones was in front of the truck, coming from behind the store. As Jones approached appellant, the latter hit Jones several times with a large stick, which he used to prop up the hood of the truck. Jones apparently fell to the ground, but got up and started walking toward his house. As Jones walked away, police officer Ollie White arrived and talked to appellant, who still held the stick. Phillip White testified that he saw appellant beating another person (Jones) with a stick as Jones was walking away. According to evidence for the State, during the altercation, when appellant was hitting Jones with the stick, Jones had no weapon in his hands.

Jones arrived at his home about 8:30 p.m. with his head bleeding. About 12:00 a.m., Annie Mae Miller, who also lived at the house, took him to the emergency room at the hospital, where he was examined by Dr. Gough, the medical doctor on duty there. He found laceration of the scalp, and treatment consisted of stitches, antibiotic ointment, bandages, X-ray of the skull, which showed no fracture, an X-ray of the jaw, which indicated a fracture of the left jaw, and a tetanus shot. Jones was discharged after two hours and sent home with instructions to return to his personal physician in 5-7 days for removal of the stitches. The next morning, Annie Mae Miller reported that Jones was dead.

Dr. Bennett, a forensic pathologist, performed an autopsy on Jones and testified that the cause of death was a large blood clot, i.e., an epidural hematoma, which was secondary to head injuries from a beating with a blunt instrument. The blood clot was caused by a skull fracture. The stick used by appellant was consistent with the wound. The fracture was across the top of the skull, from above the right ear to the left temple.

Appellant's defense was self-defense. He claimed

that Jones came toward him, appellant got the stick from his truck, and when Jones reached for a knife, appellant hit him approximately two (2) to four (4) times; and that when Jones quit coming at him, he did not hit him any more.

The first four assigned errors present the same or related law issues and we consider them together. In his argument on those issues, appellant contends that the wounds inflicted by appellant on Jones were not mortal in nature; that the treatment thereof by the physician constituted the sole independent intervening cause of death; that the death of Jones was not caused by actions of the appellant, evincing a depraved heart; and that appellant was acting in necessary self-defense.

The appellant contends that the Weathersby rule applies to the facts of this case. The law books are replete with cases which state over and over the proper application of the rule. Many cases have advanced the defense of Weathersby, but few have prevailed. It is a just and good rule when applied to the facts which properly support the rule. Simply, in a case where the defendant or his witnesses are the only eye witnesses to the homicide, their version of what occurred, if reasonable, and not substantially contradicted in material particulars by credible evidence, physical facts, or facts of common knowledge, must be accepted as true. Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933); Harveston v. State, 493 So.2d 365 (Miss. 1986).

In the case sub judice, there were eye witnesses who supported the State's theory and the appellant's theory, and, therefore, the testimony was conflicting. Likewise, the physical facts substantially contradicted the defendant's version. This is not a case for application of the Weathersby rule.

The appellant argues that maltreatment by the physician, who administered treatment in the emergency room, was the sole independent intervening cause of death. However, the unlawful acts or omissions of an accused need not be the sole cause of death. The test for responsibility is whether the act of the accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed. Holliday v. State, 418 So.2d 69, 71 (Miss. 1982) [citing Schroer v. State, 250 Miss. 84, 91, 160 So.2d 681, 684 (1964)].

The wrongful force which caused the dazed and staggering condition of the deceased was put into operation by appellant and continued in operation or progress, and had not lost its identity or continuity as such, until the final injury. It was not the push given by Tubb which caused the deceased to fall against the iron post, but his continued dazed and staggering condition, for which appellant was the sole responsible party. Without the original wrong by appellant, what was done by Tubb would not have been sufficient to cause the deceased to fall, and there is no evidence ...

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